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By Jimmy H. Koo
A consumer who downloaded and used a free CNN news application isn’t a subscriber protected by the Video Privacy Protection Act, the U.S. Court of Appeals for the Eleventh Circuit affirmed April 27 ( Perry v. Cable News Network, Inc. , 11th Cir., No. 16-13031, 4/27/17 ).
Declining plaintiff Ryan Perry’s bid to amend his class complaint, Judge Jane A. Restani said Perry isn’t a CNN subscriber because he hasn’t demonstrated an “ongoing commitment or relationship with CNN.” Plaintiff’s proposed amendment shows a commitment only to his cable television provider, the court said.
According to the plaintiff, the CNN app, without user knowledge, tracks users’ views of articles and videos and collects a record of their app activity. When a user closes the app, CNN allegedly transmits the data to a third-party data analytics company, which in turn uses the data to compile a portfolio of user information.
The company is able to collect personally identifiable information, including name, location, phone number, email address and payment information, and to attribute the data to a single user across different devices, the complaint alleged.
The VPPA, 18 U.S.C. § 2710, prohibits videotape service providers from disclosing to third parties personally identifiable information concerning a consumer. The statute defines a consumer as any renter, purchaser or subscriber of goods or services from a videotape service provider.
In a similar case— Ellis v. Cartoon Network Inc.—the Eleventh Circuit held that a consumer who downloaded a free mobile app to watch free video wasn’t a “subscriber” under the VPPA.
Affirming the lower court’s dismissal, the appeals court held that “ Ellis controls and requires the conclusion that Perry is not a ‘subscriber’ within the meaning of the VPPA.” Perry may just delete the app “‘without consequences whenever he likes, and never access its content again,’” the court said.
Judges Charles R. Wilson and Susan H. Black joined the opinion.
Perry was represented by Edelson PC. Cable News Network Inc. and CNN Interactive Group were represented by ZwillGen PLLC.
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Full text of the court's opinion is available at http://src.bna.com/oiN.
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